To a yea or nay on Bork

By
DI /
July 30, 1987

THE White House says it fully intends to put the nomination of Robert Bork to the Supreme Court through the Senate confirmation process. Good.

An alternative would be a preemptive appointment of Mr. Bork while the Senate is on recess, an option that Senate minority leader Robert Dole points out is constitutionally available to the President. The option could still be invoked if Bork's Senate opponents were to filibuster the nomination this fall. If Bork were appointed during an autumn or winter recess, he would serve until a new Congress was elected and his appointment reviewed.

Recess appointments have been made some 15 times, initially by President Washington and most recently by President Eisenhower. Ike's appointments of Chief Justice Earl Warren and Associate Justices William Brennan and Potter Stewart caused a stir: In 1960 the Senate passed a resolution saying the recess appointment should be used only to prevent a breakdown in the court's functioning.

Sen. Joseph Biden Jr., who chairs the Senate Judiciary Committee, has made a mistake in declaring himself opposed to the Bork nomination. This may or may not be a presidential campaign calculation on Mr. Biden's part, but it definitely heightens the ideological and partisan intensity of the Bork choice.

The Senate, a broadly elected body, is supposed to share in deciding the composition of the Supreme Court. A third of the Senate was elected more recently than President Reagan; another third will be up for election next fall. The court protects against a tyrannous majority, but it cannot thumb its nose at public norms. Bork's views should be aired fully - and fairly - by the Senate before he takes to the bench. The Senate has been served notice that it cannot take forever with the hearings but must move deliberately to a yea or nay on Bork this fall.